Taylor v. Taylor

• Decision Date: 16 March 1905
• Citation: 50 S.E. 273,103 Va. 750
• Parties: TAYLOR. v. TAYLOR.
• Court: Virginia Supreme Court

103 Va. 750

50 S.E. 273

TAYLOR.

v.TAYLOR.

Supreme Court of Appeals of Virginia.

March 16, 1905.

parent and child—custody of child— eights of respective parents.

1. While a father is the natural guardian of his infant children, and has a paramount right to their custody, as against the mother, yet that right is limited by considerations looking towards the welfare of the children.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parent and Child, §§ 4-24.]

2. The custody of children should have been awarded to the father, on habeas corpus proceedings against the mother, where the evidence conclusively established his financial, moral, and general ability to care for the children, and showed that the mother had deserted his home without cause, and had refused to return at his solicitation, and was dependent upon the uncertain income and precarious charity of a wage-earning brother for the support of herself and children.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parent and Child, §§ 14-17, 21, 22.]

Error to Circuit Court, Norfolk County.

Habeas corpus proceedings by A. Thomas Taylor against Sallie L. Taylor. There was a judgment of dismissal, and petitioner brings error. Reversed.

G. S. Kendall and Jno. T. Daniel, for plaintiff in error.

Jas. F. Duncan, for defendant in error.

HARRISON, J. This is a proceeding by writ of habeas corpus, wherein the plaintiff in error, A. Thomas Taylor, was the petitioner, and the defendant in error, his wife, Sallie L. Taylor, was respondent.

The object of the petition was to recover the possession of his two infant children, who were in the custody of their mother, the respondent.

The writ was awarded, but on the hearing the lower court refused the prayer of the petition and dismissed the proceeding. This action of the circuit court is now before us for review.

It appears that the petitioner and respondent were married on the 18th of April, 1900; the former being 21 years old, and the latter only 17. The fruit of this marriage was two children—William Thomas, who at the time this proceeding begun was 2 years and 3 or 4 months old, and Ella Charlotte, then an infant 3 months of age. The petitioner resides in the town of Cape Charles, where he has provided himself and family with a comfortable home, nicely furnished, which he owns in fee simple and free from incumbrance. The petitioner alleges that he is the proprietor of a prosperous and successful business, that has enabled him to provide his wife and children with a comfortable living; that his personal habits are decorous and businesslike, being strictly temperate, industrious, and thrifty; and that he has been at all times to the respondent a provident, loyal, and affectionate husband, providing for her and his children amply, punctually, and most cheerfully; that, not content to enjoy the pleasures and comforts of her home, respondent had, without cause, excuse, complaint, or warning, stealthily deserted petitioner, taking with her the two children of their marriage, and established herself with her brother, Norman D. Rooks, whose last-known address was Huntersville, a suburb of the city of Norfolk. It is further alleged that Norman D. Rooks owned no property, and was without means, except what he derived as a wage earner, which was hardly sufficient to support himself and an aged mother who was dependent upon him; that respondent has no separate estate whatever, and is not only without means, destitute, and helpless, but is powerless to provide common necessaries for herself or children, and must therefore receive such provision from those upon whom the obligation of providing does not rest, or endure privation and hardship which her children neither invoked nor deserve to suffer. Petitioner further alleges that after the departure of his wife he went in a day or two to see her in person, and entreated her to return with him to their home, which she refused to do; that in two or three weeks thereafter he renewed this Invitation through his counsel, but without avail; that then, as well as now, petitioner was, and still is, able, willing, and anxious to furnish his wife and children a home in the town of Cape Charles, and all such comforts as should make them reasonably contented and happy therein; that it is an insufferable tax upon his sensibilities to realize the status of his loved ones being denied a competency save by the uncertain and at best temporary grace of those whose officiousness must sooner or later cease to actuate even the present measure of their charity, and that by the indiscretion of respondent, and in violation of petitioner's most sacred rights. Petitioner charges that his children are being illegally detained in the custody of respondent; that their best interests demand that they be delivered to and reared under the care of petitioner; that he is in every way prepared to provide them with appropriate and tender care; that, if delivered into his custody, they will be cared for and ministered to by his mother, who is exceptionally devoted to her grandchildren; and that every necessity will be provided for them during his lifetime, and after, as he carries sufficient life insurance in solvent institutions to raise said children in reasonable luxury, if properly administered.

The essential allegations of this petition are supported by evidence other than that of the petitioner. Indeed, it would be difficult for any one to establish by those who have known him from childhood a higher character or better reputation than is accorded the petitioner by those who speak in his behalf in this case.

Lemuel E. Mumford, a banker at Cape Charles, says: "I have known petitioner from his boyhood. I know his general reputation in the community in which we both live, and have no hesitation in pronouncing it to be good." He further says that petitioner is industrious, thoroughly sober, steady, progressive, and prosperous, as well as amiable in disposition; that, as far as ascertainable from outside appearances, petitioner is a comfortable liver in his home, and owns a very cozy residence in Cape Charles, where he and his family lived prior to Mrs. Taylor's departure from him, and has a business in town that appears and is generally believed to be prosperous and successful; that affiant believes, in common with petitioner's neighbors generally, that he is thoroughly worthy of belief and truthful in all that he may state; that affiant is aware of no reason why petitioner is not a suitable person, amply qualified in every way for the custody and management of his children.

Marion H. Stevenson, the mayor of the town of Cape Charles, says: "I am thoroughly acquainted with the general reputation of petitioner in the community in which we both live, and have no hesitation in pronouncing it first-class in every particular.

Petitioner Is of excellent personal character, sober, industrious, honest, honorable, and amiable. I know of no young man in the town of Cape Charles, or anywhere, more trustworthy in every way, nor one who is better qualified as the head of a small family, such as he had up to the departure a few months ago of his wife." That petitioner is the proprietor of a prosperous business in the town, owns a comfortable home, and that affiant is aware of no reason whatever why petitioner is not in every way a suitable person to have the custody of his children.

E. J. Twiford, a grocery merchant, after speaking in the highest terms of the character and reputation of petitioner, says that he is comfortably fixed for housekeeping, has a paying business, and is a good manager, and excellent provider for his family, or was before his wife broke it up by leaving him, if affiant may judge from the amount and quality of the provisions bought at his store by the petitioner and his wife, where both had unlimited credit, as petitioner never questioned or refused to pay a bill promptly, whether bought by his wife or their servant.

A number of other merchants and business men of Cape Charles testify in the most flattering terms to the high standing and character of petitioner, and to his entire qualification in every respect to raise and train his children, but it would unnecessarily prolong this opinion to quote further from this evidence. We have only desired to convey some idea of the character in which the petitioner lias presented himself to this court, claiming the right to the custody and care of his children.

The petition, from which we have quoted quite fully, was answered by respondent briefly as follows: That respondent does not unlawfully detain the bodies of the two infants named in the complaint; that, on account of the harsh and cruel treatment of respondent by petitioner, she was forced to leave his bed and house and seek refuge with her brother, where she is now domiciled with her...